Karnataka High Court

Sri Lokanath vs Sri Anjanappa on 26 February, 2024

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                                                           NC: 2024:KHC:7944
                                                         RSA No. 579 of 2014




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 26TH DAY OF FEBRUARY, 2024

                                           BEFORE

                       THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                    REGULAR SECOND APPEAL NO. 579 OF 2014 (INJ)

                   BETWEEN:

                   SRI LOKANATH
                   AGED ABOUT 48 YEARS,
                   S/O KARPANNAGOUDER,
                   VADDARAGUDI VILLAGE,
                   KASABA HOBLI
                   H.D.KOTE TALUK
                   MYSORE DISTRICT.
                                                                ...APPELLANT
                   (BY SRI. B S NAGARAJ, ADVOCATE)

                   AND:

                   SRI ANJANAPPA
                   S/O LATE NAGAIAH
                   AGED ABOUT 65 YEARS,
Digitally signed
by R DEEPA         R/AT VADDRAGUDI VILLAGE,
Location:          KASABA HOBLI,
HIGH COURT         H.D.KOTE TALUK -571105
OF                                                            ...RESPONDENT
KARNATAKA
                   (BY SRI. T.A. KARUMBAIAH, ADVOCATE)

                        THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
                   JUDGEMENT & DECREE DTD 30.11.2013 PASSED IN
                   R.A.NO.24/11 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
                   JMFC., HUNSUR, DISMISSING THE APPEAL AND CONFIRMING
                   THE JUDGEMENT AND DECREE DTD 22.2.2011 PASSED IN
                   O.S.NO.126/2005 ON THE FILE OF THE CIVIL JUDGE,
                   H.D.KOTE.
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                                                 NC: 2024:KHC:7944
                                            RSA No. 579 of 2014




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This second appeal is filed by the appellants

challenging the judgment and decree dated 30.11.2013,

passed in R.A.No.24/2011 by the Additional Senior Civil

Judge & JMFC, Hunsur, confirming the judgment and

decree dated 22.02.2011, passed in O.S.No.126/2005 by

the Civil Judge (Jr.Dn.), H.D.Kote.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial Court. The

appellant is the defendant and respondent is the plaintiff.

3. The brief facts leading rise to filing of this appeal

are as under:

Plaintiff filed a suit for permanent injunction against

the defendant restraining the defendant from interfering

into the peaceful possession and enjoyment of the suit

schedule property. It is the case of the plaintiff that the

suit property originally belonged to Government and it was

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granted in favour of his father by name Nagaiah, S/o

Nagaiah who was also resident of the said village. The

plaintiff's father was in uninterrupted possession till

17.01.1971. On 18.01.1971, he sold the said land in

favour of Pashupathi Gounder. According to the plaintiff,

original grantee Nagaiah belonged to Bovi community and

it is recognized under the Scheduled Castes. The

plaintiff's father approached the Assistant Commissioner

under the PTCL Act. The Assistant Commissioner allowed

the said application and the sale transaction that took

place in favour of Pashupathi Gounder on 18.01.1971,

stood cancelled and the land vested with plaintiff's father.

On account of the order passed by the Assistant

Commissioner, the land was restored in favour of father of

plaintiff and he was enjoying the suit schedule property.

After his demise, plaintiff came in possession of the suit

schedule property. Defendant made an attempt to

obstruct the plaintiff's peaceful possession. Plaintiff

approached the police by giving complaint, but police gave

an endorsement stating that the issue involved is of civil in

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nature and directed the plaintiff to approach civil Court.

Thereby cause of action arose for the plaintiff to file the

suit for permanent injunction.

4. Defendant filed written statement denying the

averments made in the plaint and it is contended that

plaintiff is not the son of Nagaiah, but he is the son of one

Ramaiah and the said fact is evident from the demand

suit schedule property. It is contended that the plaintiff's

wife by name Yashodamma had given the application

before the Tahsildar, H.D.Kote stating that the schedule

property belongs to them as it was sold by Nagaiah to

Pashupati Gounder and she sought for restoration of the

property. The Village Accountant and the Revenue

Inspector carried out inspection and submitted a report. It

is contended that the enquiry report revealed that the

plaintiff is not in possession of the suit schedule property

and the defendant is in possession of the suit schedule

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property as on the date of inspection. On these grounds

sought for dismissal of the suit.

5. The Trial Court, on the basis of the above said

pleadings, framed the following issues:

1) Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of suit?

2) Whether the plaintiff proves that alleged interference by the defendant?

3) Whether the plaintiff is entitled to the relief of perpetual injunction order as prayed for?

4) What order or decree?

6. In order to prove the case of the plaintiff, the

plaintiff examined himself as PW-1 and in order to prove

possession, examined one witness as PW-2 and got

marked 18 documents as Exs.P1 to P18. In rebuttal,

defendant examined himself as DW-1 and got examined

one witness as DW-2 and got marked 9 documents as

Exs.D1 to D9. The trial Court after assessing the oral and

documentary evidence of the parties, answered issue

Nos.1 to 3 in affirmative and issue No.4 as per the final

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order. The trial Court decreed the suit of the plaintiff by

issuing the permanent injunction and restrained the

defendant from interfering into the peaceful possession

and enjoyment of the plaintiff over the suit schedule

property.

7. The defendant aggrieved by the judgment and

decree passed in the above said suit, filed an appeal in

R.A.No.24/2011. The First Appellate Court, after hearing

the parties, has framed the following points for

consideration:

1) Whether the plaintiff was successful in showing that as on the date of filing the suit, he was in lawful possession of the schedule property?

2) Whether the interference in the impugned judgment is called for?

3) What order?

8. The First Appellate Court, on re-assessing the oral

and documentary evidence, answered point No.1 in

affirmative and point No.2 in negative and consequently

dismissed the appeal filed by the defendant, confirming

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the judgment and decree passed by the trial Court. The

defendant, aggrieved by the judgment and decree passed

by the courts below, has filed this second appeal.

9. This court admitted the appeal on 18.10.2022 to

consider the following substantial question of law :

"Whether the trial Court and the First Appellate Court are justified in decreeing the suit for injunction without framing an issue relating to the status of the plaintiffs as children of Late Nagaiah despite the specific plea taken by the defendant in the written statement?"

10. Heard learned counsel for the parties.

11. Learned counsel for the defendant submits that

though the defendant has taken a specific defence in the

written statement that the plaintiff is not the son of

Nagaiah, but he is the son of Ramaiah. Inspite of the said

defence taken by the defendant, the trial Court has not

framed any issue in that regard. He submits that the trial

Court has committed an error in decreeing the suit. He

further submits that though the documents produced by

the plaintiff discloses that the said land stood in the name

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of Nagaian and he was in possession of the suit schedule

property, but in order to prove that the plaintiff is in

possession of the suit schedule property, he has not

produced any records to establish his possession over the

suit schedule property. He submits that the trial Court

committed an error in decreeing the suit without framing

an issue regarding the status of the plaintiff as son of Late

Nagaiah and he also submits that the suit for bare

injunction without seeking the relief of declaration is not

maintainable. Hence on these grounds he prays to allow

the appeal.

12. Per contra, learned counsel for the petitioner

supports the impugned judgment and decree. He submits

that the plaintiff is in possession of the suit schedule

property and the plaintiff in order to establish his

possession over the suit schedule property, has examined

one witness as PW-2 who has deposed that the plaintiff is

in possession of the suit schedule property. Hence he

submits that the trial Court as well as the First Appellate

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Court have rightly passed the impugned judgments and on

these grounds he prays to dismiss the appeal.

13. Perused the records and considered the

submissions of learned counsel for the parties.

14. SUBSTANTIAL QUESTION OF LAW: It is the case of

the plaintiff that the suit land is a Government land and

one Nagaiah, S/o Nagaiah was cultivating the said land.

The said land was granted in favour of Nagaiah, S/o

Nagaiah by the Government. By virtue of the said grant

order, Nagaiah was in possession of the suit schedule

property and saguvali chit was issued on 20.04.1965, and

the said Nagaiah is the father of the plaintiff. Nagaiah

during his lifetime sold the said land in favour of one

Pashupathi Gounder under registered sale deed dated

18.01.1971. Thereafter Nagaiah approached the Assistant

Commissioner under the provisions of the PTCL Act

alleging that the said transaction is in violation of Section

4 of the PTCL Act. The Assistant Commissioner allowed

the said application filed by Nagaiah and declared the sale

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deed as null and void and ordered for restoration of

possession of land in favour of Nagaiah. Nagaiah died

leaving behind the plaintiff. After the demise of Nagaiah,

plaintiff came in possession of the suit schedule property.

The plaintiff, in order to establish his case, examined

himself as PW-1 and produced documents. Ex.P1 is the

special power of attorney executed by plaintiff in favour of

his son Venkatesh, wherein plaintiff has authorized his son

to depose on his behalf and to prosecute the proceedings

in O.S.No. 126/2005; Ex.P2 is the copy of caste certificate

of Nagaiah which reveals that he belongs to Bovi

community. The said certificate was issued on

15.06.2004. Ex.P3 is the copy of RTC in respect of land

bearing Sy.No.97/3 which reveals that Nagaiah was in

possession of the suit land during the year 2004-05.

Ex.P4 is the copy of the complaint lodged by the plaintiff

before the police and it bears the seal of police station

which reveals that plaintiff had lodged complaint against

the defendant on 01.07.2005. Ex.P5 is the postal receipt;

Ex.P6 is the postal acknowledgement; Ex.P7 is the RTC

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extract in respect of land bearing Sy.No.17/3 which

reveals that Nagaiah was in possession of suit schedule

property during the year 2006-07. Ex.P8 is the copy of

darkasth demand register; Ex.P9 is the copy of death

certificate of Nagaiah which reveals that he died on

27.06.1987. Ex.P10 is the patta book which stands in the

name of Nagaiah. Ex.P11 is the order passed by the

Deputy Commissioner under Section 5(a) of the PTCL Act

wherein the purchaser Pashupathi Gounder filed an appeal

against the order passed by the Assistant Commissioner.

The Deputy Commissioner vide order dated 03.09.1985,

dismissed the appeal passed by Pashupathi Gounder.

Thereafter Nagaiah came in possession of the suit

schedule property. Ex.P12 is the copy of sketch map

issued by the survey department in respect of the land

bearing Sy.No.17/3 which discloses that Nagaiah is the

owner of the land bearing Sy.No.17/3. Ex.P13 is the copy

of the judgment passed in Misc. Appeal No.1/2006 filed by

the defendant against the plaintiff. Ex.P14 is the Election

Identity card of the plaintiff; Ex.P15 is the copy of voter's

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list which reveals the name of the plaintiff and his father's

name is shown as Nagaiah. Ex.P16 is also voter's list of

family members of plaintiff. Ex.P17 is the copy of the RTC

extract in respect of the land bearing Sy.No.17/3 which

stood in the name of Nagaiah for the year 2009-10.

Ex.P18 is the copy of RTC extract in respect of land

bearing Sy.No.17.

15. During the course of cross-examination, it was

suggested to PW-1 that plaintiff is not the son of Nagaiah,

and the father's name of plaintiff is Ramaiah. The said

suggestion was denied by PW-1 and further it was

suggested to PW-1 that his mother Yashodamma

submitted an application before the Tahsildar and

requested the Revenue Inspector or Village Accountant to

enquire into the matters and submit a report in order to

ascertain who is in possession of the suit schedule

property and the said suggestion was admitted.

16. Further, in order to prove the possession of

plaintiff over the suit schedule property, plaintiff examined

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one witness as PW-2 who has deposed that plaintiff is in

possession of the suit schedule property and the said land

was granted in favour of Nagaiah. It was suggested to

PW-2 that the plaintiff is not the son of Nagaiah, but is the

son of Ramaiah. The said suggestion was denied by PW-2.

17. In rebuttal, defendant examined himself as DW-

1 and he has reiterated the written statement averments

in his examination-in-chief and in order to prove his

defence, he has produced documents. Ex.D1 is the order

passed by the Assistant Commissioner under the PTCL Act

dated 14.11.2007. Ex.D2 is the voter's list; Ex.D3 is the

demand register extract; Ex.D4 is the voter's list; Ex.D5 is

the certified copy of the mahazar which discloses that the

defendant is in possession of the suit schedule property;

Ex.D6 is the copy of the endorsement; Ex.D7 is the

mahazar; Ex.D8 and D9 are the RTC extracts. From the

perusal of the evidence of the parties, though defendant

has taken a defence in the written statement that the

plaintiff is not the son of Nagaiah, but he is the son of

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Ramaiah, the trial Court, without looking into the evidence

of the defendant, and without framing any issue in this

regard, proceeded to pass the judgment.

18. The entire case of the plaintiff rests on the

relationship of plaintiff with deceased Nagaiah. The said

aspect was not considered by the courts below. Even the

First Appellate Court did not consider the said aspect and

proceeded to pass the impugned judgment.

19. In order to consider the case on hand it is

necessary to examine Order XIV Rule (1) of CPC which

reads as under:

1. Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

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(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing is this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence."

20. Framing of issues is very important stage in the

civil litigation and it is the bounden duty of the Court that

due care caution, diligence and attention must be

bestowed by the learned presiding judge while framing of

issues.

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21. It is pertinent to note that the plaintiff has filed

a suit for bare injunction and in the said suit, defendant

has taken a specific defence that he is not the son of

Nagaiah, but son of Ramaiah. The trial Court ought to

have framed an issue on the said aspect and could have

given a fair opportunity to both the parties to adduce

evidence with regard to the relationship of plaintiff with

deceased Nagaiah. The trial Court has not made a proper

approach to the disputed question of fact. Hence on this

ground alone, the impugned judgment and decree passed

by the courts below are liable to be set aside. In view of

the above discussion, I answer substantial question of law

No.1 in affirmative and proceed to pass the following:

ORDER

The appeal is allowed.

The impugned judgments are set aside. Matter is remitted to the trial Court to frame an issue relating to the status of the plaintiff as son of Late Nagaiah and provide opportunity to

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the parties to adduce evidence on the said issue in accordance with law.

This Court has not made any adjudication on the merits in issue. All the contentions of the parties are kept open, including maintainability of the suit.

Since the suit is of the year 2005, trial Court is requested to dispose of the suit as expeditiously as possible. Parties are directed to appear before the trial Court on 01.04.2024, without awaiting any further notice.